SCOTUS backs "executive lawlessness"

SCOTUS backs “executive lawlessness”
Legal experts say the Supreme Court has effectively endorsed a two-tier system of justice known as the "dual state"

By Tatyana Tandanpolie
Staff Reporter
Published July 10, 2025 6:30AM (EDT)


(Salon) If it was ever unclear how the Supreme Court could entrench inequality, look no further than its latest set of decisions in the 2024-2025 term, according to Leah Litman, a University of Michigan professor of law. A key outcome of the Supreme Court’s decisions this term, Litman argued, was making it easier for some litigants to file cases and win the remedies they sought, while making it harder for others to do the same.

One example she noted was in the court’s decision to limit district courts’ power to impose nationwide injunctions, which courts have used in many of the ongoing civil rights cases involving the Trump administration, while not allowing Medicaid beneficiaries to sue over states’ decisions to boot certain providers out of the program. She also pointed to the work of Ernst Fraenkel, a German-Jewish lawyer and political scientist, and his description of the Nazi regime’s creation of two co-existing legal states: one that operates according to rules and regulations, and another that exhibits violence and power unchecked by law.

“If you are wondering whether our regime has certain parallels to the dual state that Fraenkel decides,” Litman said Wednesday. “I would point you to a footnote in Justice Jackson’s dissent in the birthright citizenship case that cited Fraenkel, ‘Dual State’ in talking about the regime of executive lawlessness that the court had ushered in.”

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The high court’s move then leaves the lower courts with “absolutely no guidance” on the reasons their decisions were overturned, leaving “the administration with even more discretion to take away status and impact people in ways that are immediately felt” and limiting tools litigators have to challenge unlawful policies, Reichlin-Melnick added. ........................(more)

https://www.salon.com/2025/07/10/scotus-backs-executive-lawlessness/